IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2020 Term

_______________

No. 19-0005

_______________

STATE OF WEST VIRGINIA,

Plaintiff Below, Respondent

v.

NICHOLAS VARLAS,

Defendant Below, Petitioner

____________________________________________________________

Appeal from the Circuit Court of Brooke County

The Honorable Jason A. Cuomo, Judge

Case No. 13-F-63

VACATED AND REMANDED

____________________________________________________________

Submitted: March 18, 2020

Filed: June 11, 2020

JUSTICE WALKER delivered the Opinion of the Court.

CHIEF JUSTICE ARMSTEAD and JUSTICE HUTCHISON dissent and reserve their

rights to file separate opinions.

Carl A. Frankovitch, Esq.

M. Eric Frankovitch, Esq.

FRANKOVITCH, ANETAKIS,

SIMON, DECAPIO & PEARL, LLP

Weirton, West Virginia

Counsel for Petitioner

Patrick Morrisey, Esq.

Attorney General

Caleb A. Ellis, Esq.

Assistant Attorney General

Andrea Nease Proper

Assistant Attorney General

Charleston, West Virginia

Counsel for Respondent

FILED June 11, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

i

SYLLABUS BY THE COURT

1. “‘The Supreme Court of Appeals reviews sentencing orders . . . under

a deferential abuse of discretion standard, unless the order violates statutory or

constitutional commands.’ Syllabus Point 1, in part, State v. Lucas, 201 W. Va. 271, 496

S.E.2d 221 (1997).” Syllabus Point 2, State v. Georgius, 225 W. Va. 716, 696 S.E.2d 18

(2010).

2. “The provisions of the Constitution of the State of West Virginia may,

in certain instances, require higher standards of protection than afforded by the Federal

Constitution.” Syllabus Point 2, Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979).

3. “Upon a defendant’s conviction at retrial following prosecution of a

successful appeal, imposition by the sentencing court of an increased sentence violates due

process and the original sentence must act as a ceiling above which no additional penalty

is permitted.” Syllabus Point 1, in part, State v. Gwinn, 169 W. Va. 456, 288 S.E.2d 533

(1982).

4. When a defendant successfully appeals a conviction for which he or

she was granted probation, State v. Eden, 163 W. Va. 370, 256 S.E.2d 868 (1979), prohibits

a circuit court from imposing a longer term of probation, or withholding probation entirely,

when sentencing the defendant upon reconviction at a later trial for the same crime or

crimes, post-appeal. To the extent that it conflicts with Eden’s due process protections, we

ii

overrule our decision in State v. Workman, No. 13-0133, 2013 WL 6183989 (November

26, 2013) (memorandum decision).

1

WALKER, Justice:

In 2014, Petitioner Nicholas Varlas was convicted of attempted sexual abuse

in the first degree1 and sexual assault in the second degree.2 For the latter crime, he was

sentenced by the Circuit Court of Brooke County to ten to twenty-five years’ incarceration,

but that sentence was suspended in favor of five years’ probation. Mr. Varlas successfully

appealed to this Court, and we reversed his convictions and remanded for a new trial in

2016. A second trial ended in a mistrial. In 2018, the circuit court conducted a third trial

and a jury once again convicted Mr. Varlas of one count each of attempted sexual abuse in

the first degree and sexual assault in the second degree. But when the circuit court entered

a new sentencing order, it failed to suspend the sentence of ten to twenty-five years’

incarceration in favor of probation.

Mr. Varlas now appeals that sentencing order, arguing that the circuit court’s

failure to suspend that sentence in favor of probation violates his constitutional due process

rights and this Court’s prohibition on heightened sentencing upon reconviction post-

appeal. We agree that the sentence is an impermissible increase in penalty under State v.

Eden3 and vacate the circuit court’s December 2018 sentencing order and remand for

resentencing.

1 W. Va. Code § 61-8B-4.

2 W. Va. Code § 61-11-8(2); W. Va. Code § 61-8B-7.

3 163 W. Va. 370, 256 S.E.2d 868 (1979).

2

I. FACTUAL AND PROCEDURAL BACKGROUND

In August of 2012, Mr. Varlas hosted a social gathering at his home and the

victim, N.S., attended. At some point during the evening, Mr. Varlas and N.S. were left

alone and watched a pornographic film together. During the film, Mr. Varlas and N.S.

engaged in sexual intercourse. The following day, N.S. reported the incident to police

alleging that the intercourse was nonconsensual.

A Brooke County grand jury later indicted Mr. Varlas on one count of

attempted sexual abuse in the first degree and one count of sexual assault in the second

degree. After a jury trial conducted in September 2014, the jury returned a verdict of guilty

on both counts. On December 18, 2014, the Circuit Court of Brooke County entered a

sentencing order (2014 Order) in which it sentenced Mr. Varlas as follows: (1) one to three

years’ incarceration for attempted sexual abuse in the first degree, and (2) ten to twenty-

five years’ incarceration for sexual assault in the second degree. The court then suspended

the ten-to-twenty-five-year sentence in favor of five years’ probation and required Mr.

Varlas to register as a sex offender for life.4

Mr. Varlas appealed his convictions to this Court, arguing that the circuit

court violated his constitutional right to a fair trial by precluding the introduction of certain

text messages into evidence. This Court agreed and in 2016 reversed Mr. Varlas’s

4 See West Virginia Sex Offender Registration Act, W. Va. Code §§ 15-12-1 to -10.

3

convictions and remanded the case for a new trial.5 While awaiting our decision in that

matter, Mr. Varlas completed his sentence of one to three years’ incarceration and was

released. He began serving his term of probation approximately two weeks prior to the

publication of our opinion on June 16, 2016. As a result of our decision, the circuit court

immediately discontinued Mr. Varlas’s probation pending a new trial.

The circuit court conducted a second trial in May 2018, which ended in a

mistrial due to the prosecution’s introduction of improper and unfairly prejudicial

testimony. The circuit court then conducted a third trial in October 2018. As with the first

trial, Mr. Varlas was convicted of one count of attempted sexual abuse in the first degree

and one count of sexual assault in the second degree. After a sentencing hearing, the circuit

court entered a new sentencing order on December 4, 2018 (2018 Order). A different

sentencing judge entered the 2018 Order than entered the 2014 Order. In the 2018 Order,

the circuit court acknowledged that under this Court’s holding in State v. Eden, it could not

impose a harsher penalty upon Mr. Varlas than had been imposed by the 2014 Order.

Despite this acknowledgement, the circuit court then imposed a harsher penalty.

Specifically, though the 2018 Order imposed an identical term of incarceration to the 2014

Order, it failed to suspend the ten-to-twenty-five year sentence for sexual assault in the

second degree in favor of five years’ probation. That failure is the basis of this appeal.

5 State v. Varlas, 237 W. Va. 399, 787 S.E.2d 670 (2016).

4

II. STANDARD OF REVIEW

We have previously held that “the Supreme Court of Appeals reviews

sentencing orders . . . under a deferential abuse of discretion standard, unless the order

violates statutory or constitutional commands.”6 With this standard in mind, we proceed

to address the parties’ arguments.

III. DISCUSSION

On appeal, Mr. Varlas argues that the 2018 Order was erroneous because the

circuit court failed to suspend his sentence of ten to twenty-five years’ incarceration in

favor of five years’ probation as it had done in the 2014 Order. He contends that the failure

to grant probation in the 2018 Order effectively imposed a harsher penalty upon him than

the 2014 Order did, thereby violating this Court’s precedent prohibiting harsher penalties

upon reconviction post-appeal under Eden. The State defends the 2018 Order, arguing first

that because the United States Supreme Court has overruled its decisions relied on by this

Court in Eden, it has effectively invalidated Eden. In the alternative, the State argues that

if Eden is valid, the circuit court did not err when it did not grant probation in the 2018

Order because probation is not part of a criminal sentence. So, the State reasons, probation

need not have been considered by the lower court in determining whether the 2018 Order

imposed a harsher penalty than the 2014 Order. We analyze each of these arguments in

turn.

6 Syl. Pt. 2, State v. Georgius, 225 W. Va. 716, 696 S.E.2d 18 (2010) (citing Syl. Pt.

1, in part, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997)).

5

A. Eden remains valid precedent in the State of West Virginia.

The outcome of this appeal depends entirely upon the operation and

interpretation of our holding in Eden. As such, before we can address whether the circuit

court violated the due process protections articulated in Eden, we revisit the issues and

analysis in that case. Law enforcement arrested Mr. Eden on a warrant for reckless driving

in a school zone.7 The magistrate court held a trial, found Mr. Eden guilty of a

misdemeanor, and fined him fifty dollars plus costs.8 Mr. Eden appealed to the circuit

court, which held a trial de novo.9 At the end of the trial, the jury found Mr. Eden guilty

and the court sentenced him to thirty days in jail plus a two-hundred-dollar fine.10 Mr.

Eden appealed to this Court arguing that the circuit court violated his due process rights by

imposing a harsher sentence than that imposed by the magistrate court.11

To resolve Mr. Eden’s appeal, we looked to the 1969 decision by the

Supreme Court of the United States in North Carolina v. Pearce.12 In Pearce, the Court

considered “the constitutional limitations upon the imposition of a more severe punishment

7 Eden, 163 W. Va. at 371, 256 S.E.2d at 870.

8 Id. at 372, 256 S.E.2d at 870.

9 Id. at 372, 256 S.E.2d at 871.

10 Id.

11 Id. at 373, 256 S.E.2d at 871.

12 395 U.S. 711 (1969).

6

after conviction for the same offense upon retrial.”13 The Court found that a harsher

sentence on retrial following a successful appeal did not raise double jeopardy or equal

protection concerns. But, the Court reasoned, that kind of sentence raised serious due

process concerns. As the Court explained, the harsher sentence would be a penalty for

pursuing an appeal:

even if the first conviction has been set aside for

nonconstitutional error, the imposition of a penalty upon the

defendant for having successfully pursued a statutory right of

appeal or collateral remedy would be no less a violation of due

process of law. A new sentence, with enhanced punishment,

based upon such a reason, would be a flagrant violation of the

rights of the defendant. A court is without right to put a price

on an appeal. A defendant's exercise of a right of appeal must

be free and unfettered. It is unfair to use the great power given

to the court to determine sentence to place a defendant in the

dilemma of making an unfree choice.[14]

The Supreme Court set out two guiding principles to justify this prohibition on heightened

punishments post-appeal: (1) concerns about vindictiveness in sentencing, and (2) the

chilling effect such harsher penalties may have on appeals.15

Pearce and Eden arose in different contexts. In Pearce, the defendants had

successfully attacked their original convictions via appeal and were convicted at retrial,

13 Id. at 715-16.

14 Id. at 724 (internal quotations and citations omitted).

15 Id. at 724-25.

7

while in Eden the defendant did not attack his conviction, but sought a trial de novo.16 This

Court addressed both scenarios in Eden, explaining that

the question of increased sentencing on reconviction

after remand from an appellate court is a matter of grave

concern to this Court and a discussion of the issues involved

seems necessary to a determination of the case at hand.

Therefore, we will consider the effect on due process in West

Virginia of increased sentences imposed after reconviction

following an appeal attacking the original conviction as well as

those imposed upon conviction at a trial De novo granted as a

matter of statutory right.[17]

After the Eden court analyzed Pearce, it then adopted the Supreme Court’s

reasoning that, once states establish avenues of appellate review, they must “‘be kept free

of unreasoned distinctions that can only impede open and equal access to the courts.’”18

We then found that increased penalties upon reconviction post-appeal infringe upon

defendants’ due process rights and right to an appeal under West Virginia law.19

Specifically, we stated that

when a defendant refuses to prosecute an appeal to

which he is entitled by law for fear that he will receive a

heavier sentence on retrial, he has been denied his right to

appeal. The decision not to appeal is the defendant’s but the

necessity of making the decision is forced upon him by the

State. The State is in effect imposing conditions upon the

16 Eden, 163 W. Va. at 381, 256 S.E.2d at 875.

17 Id. at 381, 256 S.E.2d at 875.

18 Id. at 380, 256 S.E.2d at 874 (citing Pearce, 395 U.S. at 724-725).

19 Id. at 382, 256 S.E.2d at 875.

8

defendant’s right to appeal by telling him that he has the right,

but that by exercising it he risks a harsher sentence.[20]

We also explicitly adopted the two concerns that drove the Supreme Court’s decision in

Pearce: (1) concerns about vindictiveness in sentencing, and (2) the chilling effect such

harsher penalties may have on appeals.21 We do not address vindictiveness here, because

it is not implicated on these facts, nor has Mr. Varlas argued that it is.22 As such, we focus

our analysis on the chilling effect increased penalties post-appeal have on a defendant’s

due process right to an appeal.

According to the State, the Supreme Court has decided other cases that

undermine the underlying principles of Pearce, and, therefore, our decision in Eden. The

first of these is Chaffin v. Stynchcombe,23 decided in 1973. In that case, the Supreme Court

20 Id.

21 Id. at 384, 256 S.E.2d at 876 (“Protection of the criminal defendant’s fundamental

right to appeal and avoidance of any possible vindictiveness in resentencing would force

us to hold that upon a defendant’s conviction at retrial following prosecution of a successful

appeal, imposition by the sentencing court of an increased sentence violates due process

and the original sentence must act as a ceiling above which no additional penalty is

permitted.”).

22 Regarding vindictiveness, the State cites to the United States Supreme Court’s

1989 opinion in Alabama v. Smith, 490 U.S. 794, which holds that there is no presumption

of vindictiveness when a defendant receives an increased punishment after a jury trial post-

appeal, when the original, lighter punishment resulted from a guilty plea. Smith focuses

solely on vindictiveness and does not address the chilling effect increased penalties post-

appeal have on a defendant’s due process right to appeal. As noted above, the facts in this

case do not implicate vindictiveness at all, so we conclude that Smith is not relevant to our

discussion today and does not adversely impact the validity of Eden and its progeny with

regard to our due process analysis.

23 412 U.S. 17 (1973).

9

held that the possible chilling effect of a harsher sentence on retrial does not place an

impermissible burden on the right of a criminal defendant to appeal his conviction.24

Chaffin is not the hurdle the State makes it out to be. We were undeniably aware of Chaffin

when we decided Eden in 1979—six years after Chaffin. And, while Chaffin undermines

the chilling effect concerns in terms of federal due process standards, we made clear in

Eden that our due process concerns stemmed from much broader principles:

In West Virginia a person convicted of a crime is

entitled to the right to appeal his conviction and a denial of that

right constitutes a violation of both federal and state due

process clauses and renders the conviction void. It is clear to

us that when a defendant refuses to prosecute an appeal to

which he is entitled by law for fear that he will receive a

heavier sentence on retrial, he has been denied his right to

appeal.[25]

Therefore, we clearly based Eden not only on federal due process protections, but also on

the due process protections afforded by the West Virginia Constitution.

And, while we did not explicitly address Chaffin in Eden, we did address

Colten v. Kentucky,26 a 1972 decision by the Supreme Court. But, as we distinguished

Colten in Eden, that case has not undermined Eden’s general prohibition against increased

punishments post-appeal. In Colten, the Supreme Court held that a more severe sentence

24 Id. at 29.

25 Eden, 163 W. Va. at 381–82, 256 S.E.2d at 875 (internal citations omitted)

(emphasis added).

26 407 U.S. 104 (1972).

10

imposed after reconviction post-appeal did not violate a defendant’s due process rights.27

In Eden (decided seven years after Colten), we explicitly rejected Colten’s holding and

instead relied on Justice Marshall’s dissent in that case. We stated:

We agree with Justice Marshall's analysis of Pearce [in

his Colten dissent]. The opportunity for vindictive sentencing

is inherent in any system which permits increased sentencing

upon conviction at a new trial. And even if vindictiveness can

be positively shown not to exist, the deterrent effect of

increased sentencing on the exercise of the right to obtain a

new trial deprives a defendant of his statutory right to a trial

De novo, his only avenue of post-conviction relief, in the same

way it deprives a defendant desiring to attack his conviction of

his right to appeal. We can see no justification for

distinguishing between the burden placed on the defendant's

rights in either instance.[28]

So, while Chaffin and Colten (both decided before Eden) may undermine

Pearce in terms of a defendant’s federal due process rights, those cases don’t undermine

Eden to the extent that it is based on due process protections under our state constitution.

We have made it abundantly clear that “[t]he provisions of the Constitution of the State of

West Virginia may, in certain instances, require higher standards of protection than

afforded by the Federal Constitution.”29

27 Id. at 116-117 (finding that Kentucky’s appellate system posed no reasonable

likelihood that defendants would be deterred from seeking out retrials out of fear of

vindictiveness and harsher penalties).

28 Eden, 163 W. Va. at 386, 256 S.E.2d at 877.

29 Syllabus Point 2, Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979).

11

In sum, we conclude that Eden remains valid precedent in the State of West

Virginia because Eden is predicated on the stronger due process protections afforded by

the West Virginia Constitution. As we plainly stated in that case:

Protection of the criminal defendant’s fundamental

right to appeal and avoidance of any possible vindictiveness in

resentencing would force us to hold that upon a defendant’s

conviction at retrial following prosecution of a successful

appeal, imposition by the sentencing court of an increased

sentence violates due process and the original sentence must

act as a ceiling above which no additional penalty is

permitted.[30]

So, we affirm the due process principles which underlie Eden—principles that prohibit

increased penalties upon reconviction post-appeal—and reject the State’s invitation to

overrule Eden and its progeny.

B. For the limited purpose of an Eden analysis, probation must be considered as part

of a criminal sentence.

Having confirmed the precedential value of Eden in our state, we now turn

our attention to Mr. Varlas’s assignment of error. He argues that the circuit court erred in

the 2018 Order by failing to suspend his sentence of ten to twenty-five years’ incarceration

in favor of five years’ probation, as it had originally done in the 2014 Order. He further

argues that this failure resulted in an impermissible increase in penalty, which is contrary

to Eden’s prohibition on such harsher penalties post-appeal. The State counters that the

harsher 2018 sentence does not run afoul of Eden because that case applies only to the

30 Id. at 384, 256 S.E.2d at 876.

12

criminal sentence. In the State’s view, probation is not part of a criminal sentence, so the

circuit court did not violate Eden’s prohibition on harsher penalties when it did not extend

probation to Mr. Varlas in 2018.

The State rests its argument on a recent memorandum decision, State v.

Workman,31 in which we addressed the question of whether probation is part of a sentence.

In that case, the defendant brought an Eden challenge arguing that the circuit court imposed

a harsher penalty upon him than the magistrate court had imposed. The magistrate court

sentenced Mr. Workman to one year of incarceration suspended in favor of one year

unsupervised probation.32 On appeal, the circuit court imposed a nearly identical sentence,

but required supervised probation.33 Before this Court, Mr. Workman argued that the

change in probationary conditions constituted an Eden violation as the penalty was

harsher.34 We rejected his Eden challenge, reasoning that the relevant consideration was

not the supervised or unsupervised nature of the probation, but the term of incarceration.35

Upon review, we find that our reasoning in Workman was flawed and warrants correction.36

31 2013 WL 6183989 (Nov. 26, 2013) (memorandum decision).

32 Id. at *1.

33 Id.

34 Id. at *2.

35 Id.

36 Before overruling Workman, we reiterate the precedential hierarchy of our case

law. We have held that “[s]igned opinions containing original syllabus points have the

highest precedential value because the Court uses original syllabus points to announce new

13

Fundamentally, the due process concerns that we addressed in Eden do not

arise solely when a criminal defendant appeals from magistrate court to circuit court.

Rather, those due process concerns arise whenever a criminal defendant faces harsher

penalties when sentenced after appeal. The facts of Eden illustrate this. There, after Mr.

Eden appealed from magistrate court to the circuit court, the circuit court sentenced him to

thirty days in jail plus a two-hundred-dollar fine.37 We reversed the circuit court’s

sentencing order because both penalties—incarceration and fine—exceeded the penalty

imposed by the magistrate.38 That is why we stated in Eden that “[i]ncreased sentencing

upon reconviction after successful prosecution of an appeal inherently gives rise to a fear

of harsher penalties and retribution which burdens or chills the defendant’s right to appeal

points of law or to change established patterns of practice by the Court.” Syl. Pt. 1, State

v. McKinley, 234 W. Va. 143, 764 S.E.2d 303 (2014). Further, “[w]hile memorandum

decisions may be cited as legal authority, and are legal precedent, their value as precedent

is necessarily more limited; where a conflict exists between a published opinion and a

memorandum decision, the published opinion controls.” Id. at Syl. Pt. 5. We have also

explicitly stated that “our precedents, whether set forth in an opinion or a memorandum

decision, are not sacrosanct and will be reversed where warranted by the law[.]” In re T.O.,

238 W. Va. 455, 465, 796 S.E.2d 564, 574 (2017). Finally, we have held that “[a]n

appellate court should not overrule a previous decision recently rendered without evidence

of changing conditions or serious judicial error in interpretation sufficient to compel

deviation from the basic policy of the doctrine of stare decisis, which is to promote

certainty, stability, and uniformity in the law.” Syl. Pt. 2, Dailey v. Bechtel Corp., 157 W.

Va. 1023, 207 S.E.2d 169 (1974). With these holdings in mind, we now address why we

find the Workman decision to have involved serious judicial error so as to warrant its

overturning.

37 Id.

38 Id. at 373, 256 S.E.2d 871.

14

and should not be permitted in any circumstances.”39 For that reason, we conclude that the

essence of an Eden challenge is not the term of incarceration, but rather the total penalty

imposed by the sentencing court upon reconviction. Workman was wrongly decided

because it failed to appreciate this critical distinction.

Other considerations support that conclusion. In Workman, we cited a partial

footnote from State v. Tanner40 for the proposition that “probation has no correlation to the

underlying criminal sentence.” 41 This citation is wrong for several reasons. First, the

quotation is incomplete, as that footnote actually includes the full language of our holding

in Syllabus Point 1 of Jett v. Leverette, which reads, in relevant part, that “[t]he term of

probation has no correlation to the underlying criminal sentence.”42 This is critical because

Jett stands for the proposition that the duration of a probation term is not dependent upon

the duration of the underlying criminal sentence. That is why a defendant can be sentenced

to ten to twenty-five years’ incarceration but have that sentence suspended in favor of a

39 Id. at 382, 256 S.E.2d at 875 (emphasis added).

40 229 W. Va. 138, 141 n.7, 727 S.E.2d 814, 817 n.7 (2012) (“This Court has held

that, ‘[i]n West Virginia there are fundamental statutory differences between probation and

parole in the relationship they bear to the underlying criminal sentence. The term of

probation has no correlation to the underlying criminal sentence, while parole is directly

tied to it. In effect, there is a probation sentence which operates independently of the

criminal sentence.’ Syl. pt. 1, Jett v. Leverette, 162 W. Va. 140, 247 S.E.2d 469 (1978).”).

41 Workman, 2013 WL 6183989 at *2 (citing State v. Tanner, 229 W. Va. 138, 727

S.E.2d 814 (2012)).

42 Syl. Pt. 1, Jett v. Leverette, 162 W. Va. 140, 247 S.E.2d 469 (1978) (emphasis

added).

15

significantly shorter term of probation (up to a maximum of seven years).43 By failing to

cite that full language, Workman altered the meaning of that holding to stand for an entirely

different proposition that probation and the underlying criminal sentence are never related.

Second, Workman’s citation to Tanner is apparently without justification.

Upon reviewing Tanner, it is clear that probation was little more than a passing issue in

that case because the petitioner erroneously believed that the circuit court could only grant

her probation, rather than parole, from her term of home confinement.44 The footnote is

apparently placed simply to denote our prior holding in Jett because it highlighted the

distinctions between parole and probation and their effect upon the underlying criminal

sentence.

And, in reviewing the source of that footnote, Jett’s holding does not appear

to have any adverse implications for Eden’s prohibition against increased penalties post-

appeal. In fact, in examining Jett, it is clear that we did not analyze the due process

43 W. Va. Code § 62-12-11.

44 In Tanner, the petitioner appealed an order from the circuit court that granted her

parole from her term of home incarceration with the condition that she not “be in the

presence of accompaniment of anyone convicted of a felony[,] including her husband.”

Tanner, 229 W. Va. at 139, 727 S.E.2d at 815. In addressing Ms. Tanner’s argument that

the circuit court could only place her on probation because parole is an executive authority,

we held that the Home Incarceration Act clearly provided that a circuit court had the same

authority as the board of probation and parole regarding release, early release, or release

on parole of the concerned person. Id. at 141, 727 S.E.2d at 817. We never addressed the

distinctions between probation and parole in any depth in that case, so our reference to Jett

was merely in passing.

16

protections implicated by increased penalties at all.45 This is so for several reasons. First

and foremost, Jett arose, not out of an appeal, but out of a writ of habeas corpus predicated

on double jeopardy, an entirely different procedural context. Though Eden did not exist at

the time of Jett’s decision, Pearce did. And in Pearce, before finding that due process

protections prohibited increased penalties upon reconviction post-appeal, the United States

Supreme Court clearly stated that “[l]ong-established constitutional doctrine makes clear

that, beyond the requirements already discussed, the guarantee against double jeopardy

imposes no restrictions upon the length of a sentence imposed upon reconviction.”46 So,

even though the protection against double jeopardy places no restriction on increased

sentences upon reconviction, due process considerations do impose such restrictions. And,

as noted above, even though Pearce’s federal due process considerations have been

undermined, the West Virginia Constitution affords greater protection than its federal

counterpart, so our state due process considerations are still valid. Therefore, because Jett

45 In Jett, the circuit court revoked the petitioner’s probation and re-imposed his

original criminal sentence. Jett, 162 W. Va. at 140, 247 S.E.2d at 470. The petitioner

sought credit for time served calculated based on the time he spent on probation. Id. The

circuit court declined and the petitioner sought a writ of habeas corpus on grounds that

failure to grant time served amounted to double jeopardy. Id. He argued that similarly

situated persons who had been paroled, rather than granted probation, were entitled to time

served. Id. at 141, 247 S.E.2d at 470. In denying the writ, we illustrated several differences

between parole and probation, including that the term of probation does not correlate to the

underlying criminal sentence, whereas parole does directly correlate to that underlying

sentence in that it shortens the amount of time the person is incarcerated. Id. at 144-45,

247 S.E.2d at 471-72.

46 Pearce, 395 U.S. at 719.

17

is predicated on the guarantee against double jeopardy, rather than due process, it has no

bearing upon Eden’s prohibition against increased penalties upon reconviction post-appeal.

Returning to Workman, we also cited Syllabus Point 2 of State ex rel.

Strickland v. Melton,47 which states that “[p]robation is not a sentence for a crime but

instead is an act of grace upon the part of the State to a person who has been convicted of

a crime.” That holding clearly stands for the proposition that a defendant is not entitled to

probation as a matter of law, but that the court may, in its discretion, grant probation to

those it finds deserving of a more lenient punishment than incarceration.

We still agree with the holding that a criminal defendant is not entitled to

probation, but we also see that it has limited applicability in the unique context of an Eden

challenge. Specifically, we must address whether Eden’s prohibition against harsher

penalties upon reconviction post-appeal is implicated when a sentencing court suspends a

defendant’s criminal sentence in favor of probation in the first instance, but fails to extend

47 152 W. Va. 500, 165 S.E.2d 90 (1968). Much like Jett, Melton was before this

Court on a writ of habeas corpus rather than direct appeal. In that case, the defendant pled

guilty to the crime of forcible rape. Id. The court suspended imposition of sentence and

granted petitioner a three-year probation term. Id. at 502, 165 S.E.2d at 92. One year later,

after the petitioner was indicted on charges of grand larceny, the court revoked his

probation and imposed a sentence of five to twenty years’ incarceration for the rape

conviction. Id. A different court also sentenced petitioner to one to ten year’s incarceration

for the grand larceny conviction. Id. In his writ, the petitioner alleged that the circuit court

violated his due process rights to representation by counsel because he was not represented

by counsel when the court revoked his probation. Id. at 504, 165 S.E.2d at 93. He also

argued that he was denied the right to a fair trial because was “required to bargain for

justice . . . when he entered his plea of guilty to the indictment for the crime of forcible

rape.” Id. at 505, 165 S.E.2d at 93.

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the same grant of probation upon reconviction for the same crime or crimes post-appeal.

To reiterate, the protections of Eden arise from concerns that harsher penalties upon

reconviction post-appeal deter defendants from appealing their convictions and deny

defendants their due process right to an appeal. Melton involved a criminal defendant’s

due process right to counsel and to a fair trial—not his right to an appeal. As such, Melton

does not guide us in terms of the due process right to appeal, so we must undertake an

analysis here to determine whether a defendant has been deprived of due process when a

sentencing court extends to him or her a grant of probation at the original sentencing, but

fails to extend that same grant of probation when he or she is convicted of the same crime

or crimes post-appeal.

A defendant like Mr. Varlas, who brings an Eden challenge on the basis that

probation has been denied, does so after the court granted probation at the first sentencing,

but found the defendant undeserving of that more lenient punishment upon reconviction

for the same crime or crimes post-appeal. In that situation, the defendant has already had

the benefit of a lighter penalty in the first instance, but has been given a heavier penalty in

the second, even where the terms of incarceration were identical. Mr. Varlas’s case

provides a perfect example of how two “identical” sentences can, in reality, be vastly

different for the defendant. Here, Mr. Varlas was originally sentenced to ten to twenty-

five years’ incarceration suspended in favor of five years’ probation (the statutory

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maximum at the time).48 He appealed to this Court and we reversed his conviction and

remanded for new trial. Upon his reconviction for the same crimes, he was again sentenced

to an identical criminal sentence of ten to twenty-five year’s incarceration, but that sentence

was not suspended in favor of five years’ probation. While it is reasonable to say that the

pre- and post-appeal criminal sentences are identical—as we did in Workman—it cannot

be argued that the pre- and post-appeal penalties are the same for the defendant. To the

person experiencing that punishment, there is a harsh distinction between the relative

freedom of probation and the ultimate restriction of incarceration. It does not stretch the

imagination to conclude that if a defendant knew pursuing an appeal risked the loss of

probation’s significantly less-restrictive punishment, he or she might decline to pursue that

appeal. That risk is certainly heightened where one, like Mr. Varlas, faces the potential of

many years behind bars, as opposed to five years of monitored freedom. As we recognized

in Eden, when a defendant refuses to pursue an appeal for fear of receiving a harsher

punishment upon reconviction for the same crimes post-appeal, the defendant has been

denied his due process right to an appeal.49

So, we conclude that contrary to our memorandum decision of November 26,

2013, the due process protections of Eden extend not only to terms of incarceration but

also to terms of probation. In light of that conclusion, we now hold that when a defendant

48 The statutory maximum was raised from five to seven years in 2017. W. Va.

Code § 62-12-11.

49 See Eden, 163 W. Va. at 382, 256 S.E.2d at 875.

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successfully appeals a conviction for which he or she was granted probation, State v. Eden,

163 W. Va. 370, 256 S.E.2d 868 (1979), prohibits a circuit court from imposing a longer

term of probation, or withholding probation entirely, when sentencing the defendant upon

reconviction at a later trial for the same crime or crimes, post-appeal. To the extent that it

conflicts with Eden’s due process protections, we overrule our decision in State v.

Workman, No. 13-0133, 2013 WL 6183989 (November 26, 2013) (memorandum

decision).

Applying the Eden protections in this case, we agree with Mr. Varlas that the

2018 Order imposes a heavier penalty than the 2014 Order because it fails to suspend his

ten-to-twenty-five year sentence in favor of five years’ probation.50 To conclude otherwise

would be to perpetuate an untenable reading of Eden that would allow defendants who are

given lighter punishments like probation to risk the loss of the lighter punishments if

reconvicted post-appeal. That possibility would undeniably lead many defendants to forgo

an appeal. That is clearly in conflict with our express statement in Eden that when a

defendant declines to appeal his conviction out of fear of receiving a heavier punishment,

the defendant’s due process rights have been violated because his or her right to an appeal

50 The parties also allude to the circuit court’s finding that Mr. Varlas was granted

probation in the 2014 Order because he expressed remorse for his conduct, but that he was

denied probation in the 2018 Order because he did not express that same remorse. That

finding is irrelevant to this discussion because Eden openly rejects the notion that

“additional information not available to the first judge could be the basis for an increased

penalty.” Eden, 163 W. Va. at 383, 256 S.E.2d at 875.

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has been denied. So, we vacate the circuit court’s sentencing order and remand for

resentencing consistent with this opinion.

IV. CONCLUSION

Based on the foregoing, we vacate the Circuit Court of Brooke County’s

December 4, 2018 Sentencing Order and remand this matter for resentencing consistent

with this opinion.

Vacated and remanded.